UK employers strengthen prevention strategies as tribunal delays stretch to 2030

Workers have been given employment tribunal hearing dates as late as 2030 because of a growing backlog of cases, according to new research. An investigation by the Bureau of Investigative Journalism has found that some tribunals are listing hearings as far ahead as January 2030, with pressure on the system expected to increase further as reforms under the Employment Rights Act come into force. The findings have attracted widespread attention in both the national and HR press, with the BBC reporting that some claimants are facing waits of up to five years for a hearing.

The concerns come as the Employment Lawyers Association calls for radical reform of the workplace disputes system, including greater use of mediation and other forms of early dispute resolution. They argue that employment tribunals should increasingly be seen as a last resort rather than the default route for resolving workplace disputes.

For employers, the issue is not simply the prospect of longer waits for hearings. As People Management reports, some cases are now being listed years into the future, creating prolonged uncertainty for both employers and employees. The longer a dispute continues, the greater the risk that witnesses move on, memories fade and workplace relationships deteriorate.

Against that backdrop, employers are increasingly focusing on prevention rather than defence. That means making sure disciplinary and dismissal procedures are fair and consistent, equipping managers to handle sensitive workplace issues appropriately, identifying emerging risks earlier and resolving disputes before they escalate into litigation. 

So what practical steps can HR teams take now to reduce tribunal risk and strengthen their position should a claim arise? Earlier, I spoke to employment lawyer Rebecca Sulley who joined me by phone from Birmingham and put that question to her:

Rebecca Sulley: “So what we are suggesting to clients is that you be proactive, and that you have a look at your dismissal and disciplinary processes and see where improvements can be made, making sure that you've got a fair and consistent policy and, perhaps, if there's line management guidance, that you're flagging exactly when they should be seeking input from HR to kind of cross check decisions effectively. You might also consider having a legal review in at that early stage, especially if you've got very high risk, or senior individuals who you're dismissing, just to have a flag in there to say before you go ahead and do it, speak with HR, and HR in turn might get some legal support because what you want to ensure is that you have a fair process, but also a consistent process because what we are finding is a lot more claimants are trying to rely on comparator cases and if you don't have that consistency they may be more likely to win a discrimination complaint. So HR input, manager checklists, and manager training as well is all very important to make sure you can defend a case if it comes to tribunal.”

Joe Glavina: “You mentioned we’re seeing more discrimination cases and the figures bear that out, so you’re saying training for managers will help defend cases.” 

Rebecca Sulley: “Yes, so we're getting a lot of requests for specifically manager training in terms of how to recognize and deal with people who have disabilities, making sure that they respond in a sensitive matter, and that they know what the obligations are for the employer. So we are seeing quite a lot of clients introducing reasonable adjustment passports. So they'll log when a reasonable adjustment has been agreed and the period, they'll make sure they review it, but that's also really helpful if the individual moves to another team, or there's a change in manager, they have something that's written down, and they don't have to go through the process of explaining to a new manager their condition and the adjustments they have. We've had a lot of success at tribunal in showing that that has really made the employer think about reasonable adjustments and helps in defending those types of claims. So certainly, it's very important to look at your policies and processes and have extra steps in place for people who need extra support in the workplace.”
Joe Glavina: “A point I know you’ve been stressing with clients is using early dispute resolution more aggressively, getting in there early and resolving the dispute before it blows up.”

Rebecca Sulley: “Yes, so I think one of the key things to have a think about is your exit interviews because that will quite often flag where there is an issue with an individual, or if they've raised a grievance on leaving and whilst you might not get the contact from Acas at the early conciliation stage, there's nothing stopping you from trying to mediate at that point where they're still an employee, or they might be about to leave the business, and try and invest in things such as mediation. It might be that you can hold mediations yourself internally between the parties to resolve things, or we know some companies are actually going externally and getting a trained mediator in, especially with very difficult situations, or very senior people, and trying to just resolve that dispute before it turns into an early conciliation. So certainly it's worth looking at how you can resolve the problem before it becomes a tribunal claim.”
Joe Glavina: “So finally Becci, a positive step, an action, you’d like to see HR professionals take going forward. What would that be?” 
Rebecca Sulley: “So I think something that is really helpful to do, and that a lot of our HR clients are doing, is monitoring things like grievances, or appeals, certainly tribunal claims, to really flag hotspot areas amongst the business where the managers might need more training, they might need external training, perhaps, or they might have to have a clearer guide for managers. That's really important because we do quite often see discrimination claims stemming from particular areas and, perhaps, particular individuals, and with things like harassment claims the tribunal are expecting HR to be proactive in monitoring and logging complaints. So if you're not already looking and addressing hotspot issues then I'd say you should be. Also, given that the ERB is going to be implemented sometime in the next couple of years, it's really looking at what you can do now to make sure your managers and your HR teams are addressing the changes that the ERB is going to make, so it's not such a big change when it actually comes. So really looking at what would happen if people get ‘day-one’ rights and looking at how that exposure might broaden and just making sure that your managers are really aware of what they will need to do going forward if that's a change from how you currently deal with and assess risk.”

So the key takeaway for HR is that, with tribunal delays growing and workplace disputes taking longer to resolve, prevention is becoming just as important as defence. If you would like help reviewing your policies, training managers, or strengthening your approach to workplace dispute resolution, please do contact Rebecca – her details are on the screen for you. 

LINKS
- Link to People Management article: ‘Tribunal hearings delayed until 2030 amid backlog, analysis finds’